Bates v. UPS (9C) brief as amicus Apr. 15, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 04-17295 _____________________ ERIC BATES, et al., Plaintiffs-Appellees, v. UNITED PARCEL SERVICE, INC., Defendant-Appellant. Appeal from the United States District Court for the Northern District of California ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS AND IN FAVOR OF AFFIRMANCE ____________________________________________________ ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Office of General Counsel Washington, D.C. 20507 (202) 663-4721 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . .2 2. Statement of Facts . . . . . . . . . . . . . . . . . .3 3. District Court's Decision. . . . . . . . . . . . . . .5 ARGUMENT I. IN AN ADA ACTION A COURT MAY PROPERLY ENJOIN AN EMPLOYER POLICY THAT SCREENS OUT A CLASS OF PERSONS WITH A DISABILITY AND IS NOT JUSTIFIED BY BUSINESS NECESSITY WITHOUT FINDING THAT ALL OF THE AFFECTED CLASS MEMBERS ARE QUALIFIED FOR THE POSITION AT ISSUE . . . . . . . . . 14 II. IN ASSESSING UPS'S BUSINESS NECESSITY DEFENSE, THE DISTRICT COURT CORRECTLY CONSIDERED THE LEVEL OF RISK UPS DEEMS "ACCEPTABLE" FOR ITS NON-DEAF DRIVERS AND DRIVER-APPLICANTS .. . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . . . . . . . . . . . . . . . . 28 Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001). . . . . . . . . . . . . 15, 20 Criswell v. Western Airlines, 709 F.2d 544 (9th Cir. 1983), aff'd, 472 U.S. 400 (1985) . . . . . . . . . . . . . . . 22 Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) . . . . . . . . . . . . . . 18 EEOC v. Murray, Inc., 175 F. Supp. 2d 1053 (M.D. Tenn. 2001) . . . . . . . . . 17 EEOC v. UPS, 149 F. Supp. 2d 1115 (N.D. Cal. 2000), rev'd, 306 F.3d 794 (9th Cir. 2002) . . . . . .9, 11, 12, 27 Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) . . . . . . . . . . . . . . . . . 16, 18 Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir. 1996) . . . . . . . . . . . . . . 20 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1977) . . . . . . . . . . . . . . . . . . . 19 McGregor v. AMTRAK, 187 F.3d 1113 (9th Cir. 1999) . . . . . . . . . . . . . . 26 Morton v. UPS, 272 F.3d 1249 (9th Cir. 2001) . . . . . . . . . . . . passim Nanty v. Barrows Co., 660 F.2d 1327 (9th Cir. 1981) . . . . . . . . . . . . . . 21 Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221 (10th Cir. 1997) . . . . . . . . . . . . . 21 Sisson v. Helms, 751 F.2d 991 (9th Cir. 1985) . . . . . . . . . . . . . . 18 Teamsters v. United States, 431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . passim Thomas v. Washington County School Board, 915 F.2d 992 (4th Cir. 1990) . . . . . . . . . . . . . . 21 UAW v. Johnson Controls, 499 U.S. 187 (1991) . . . . . . . . . . . . . . . . . . . 26 Western Airlines v. Criswell, 472 U.S. 400 (1983) . . . . . . . . . . . . . . . . . . . 25 STATUTES and REGULATIONS Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . .7, 20 The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . . passim 42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . 23, 26 42 U.S.C. § 12112(b)(3) . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 12112(b)(6) . . . . . . . . . . . . . . . passim 42 U.S.C. § 12113(a) . . . . . . . . . . . . . . . . 15, 20 49 C.F.R. § 390.5 . . . . . . . . . . . . . . . . . . . . . . .3 49 C.F.R. § 391.41(b)(11) . . . . . . . . . . . . . . . . . . .3 29 C.F.R. § 1630, App. 1630.15(b) . . . . . . . . . . . . . . 15 29 C.F.R. § 1630, App. 1630.15(c) . . . . . . . . . . . . . . 15 29 C.F.R. § 1630, App. 1630.10 . . . . . . . . . . . . . . 15, 25 OTHER AUTHORITY 70 Fed. Reg. 16888 (April 1, 2005) . . . . . . . . . . . . . . 23 S. Rep. No. 116, 101st Cong., 1st Sess. 27 (1989) . . . . 18, 25 H.R. Rep. No. 485(II), 101st Cong., 2d Sess. (1990), reprinted at 1990 U.S.C.C.A.N. 303 . . . . . . . . . 15, 25 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _____________________ No. 04-17295 _____________________ ERIC BATES, et al., Plaintiffs-Appellees, v. UNITED PARCEL SERVICE, INC., Defendant-Appellant. ____________________________________________________ Appeal from the United States District Court for the Northern District of California ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS AND IN FAVOR OF AFFIRMANCE ____________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is charged by Congress to interpret and enforce Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), and other federal employment discrimination statutes. Here, after a trial, the district court enjoined UPS from using the Department of Transportation ("DOT") hearing test to exclude deaf applicants from driving jobs that do not require DOT certification and ordered UPS to give deaf applicants the "same opportunities" as non-deaf applicants have to show they can become safe and effective package- car drivers. On appeal, UPS challenges the court's determinations that class plaintiffs could obtain injunctive relief without proving that each class member is qualified; and that UPS's business necessity defense failed in part because the company did not prove that deaf applicants pose a greater safety risk than do non-deaf drivers UPS employs. Because this Court's resolution of these questions may directly affect the Commission's ADA enforcement efforts, we offer our views to the Court. STATEMENT OF THE ISSUES 1. Whether class plaintiffs challenging a qualification standard that categorically excludes deaf employees from a job may obtain injunctive relief under the procedural framework outlined in Teamsters v. United States, 431 U.S. 324 (1977), without proving that each class member is "qualified". 2. Whether the district court correctly considered evidence that UPS hires and employs non-deaf drivers who pose an elevated risk of accident in rejecting UPS's business necessity defense. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an interlocutory appeal, following a trial on liability in this class action under the ADA and state law. In 1999, five plaintiffs brought this suit under the ADA and California law, alleging, inter alia, that defendant impermissibly applies the DOT hearing standard to all driving positions, thus preventing otherwise-qualified deaf employees from becoming drivers. District court docket number ("R")1. In 2001, the court certified a class and bifurcated the trial (R160, R570); this Court declined to review the class certification order. R174. The case was tried to the court in 2003. R307. On October 21, 2004, the district court issued Findings of Fact and Conclusions of Law enjoining UPS from using its hearing test to screen out all deaf driver-applicants and ordering the company to give deaf applicants "the same opportunities that a hearing applicant would be given to show that they can perform the job of package-car driver safely and effectively." Excerpts of Record ("ER")318. UPS noticed an appeal in November 2004 (R584), and further proceedings were stayed pending resolution of the appeal. R583.<1> 2. Statement of Facts <2> DOT regulations require that anyone who drives a "commercial motor vehicle," defined to include vehicles having a "gross vehicle weight" over 10,000 pounds (49 C.F.R. § 390.5), must satisfy certain physical qualifications, including a minimum level of hearing. 49 C.F.R. § 391.41(b)(11). Although some 5900 UPS package cars are, because of their size, not subject to DOT regulation (ER256), UPS requires all driver-applicants to pass the DOT hearing test. ER253. The parties agreed that safe driving and effective communication are essential functions of driving jobs, but disagreed about whether driving DOT-regulated trucks is also an essential function. ER271. UPS conceded that plaintiffs who fail the DOT hearing test are disabled under the ADA (ER270). while plaintiffs agreed not to challenge UPS's requirement that drivers of DOT-regulated trucks be DOT-certified (ER260) or seek relief that would conflict with collectively-bargained seniority rules. ER259. Plaintiffs proffered evidence that UPS employs some non-deaf drivers who belong to groups with an elevated risk of accident. See, e.g., ER300; Plaintiff's Exhibit ("PEx")328 (DOT report indicating that young male drivers have proportionately more accidents). In addition, their expert, Dr. Songer, testified that the few existing studies – all methodologically flawed – reach differing conclusions as to whether hearing-impaired drivers generally pose a greater driving risk than hearing drivers. ER293- 94. Further, Eric Bates and Oscar Valencia, hearing-impaired UPS drivers who passed the hearing test, described their driver- training (ER307-08), and plaintiffs' rebuttal witness, Daniel Cox, explained how he taught deaf people to drive automobiles, using a variation of the program UPS uses for non-deaf trainees. ER309-11. UPS witnesses, while admitting they had never attempted to evaluate deaf applicants' ability to become UPS drivers, testified that they could not teach deaf applicants to drive safely. ER306- 07. In addition, UPS's expert, Dr. Staplin, testified that some studies found that hearing-impaired drivers pose a higher risk of accident than do hearing drivers, and a "human factors" study concluded that some driving-related tasks are "hearing critical." ER293-98. 3. District Court's Decision In a 68-page Findings of Fact and Conclusions of Law (ER251- 318), the district court initially recognized that the ADA "only prohibits discrimination against ‘qualified individual[s] with a disability.'" Since individuals are not "qualified" unless, with or without reasonable accommodation, they can perform the essential functions of the job, it would "not be discrimination under the ADA" to screen out individuals who cannot do essential job functions. ER270-71. Based on its review of the record, however, the court rejected the notion that the class of individuals who fail the DOT hearing test "categorically" cannot perform the essential functions of package-car driving even with reasonable accommodations. See ER316. First, the court found that driving DOT-regulated trucks is not an essential function of package-car driving. The court noted, for example, that UPS conceded that some driving jobs use small trucks, some drivers are not DOT-certified, and there are protocols which permit persons who cannot obtain DOT certification because of poor vision or insulin-dependent diabetes to obtain driving jobs. ER272-73. Next, the court rejected UPS's argument that employees who fail the DOT test cannot communicate effectively. The court noted that UPS never explained "why the DOT hearing standard, which relates to driving commercial motor vehicles[], should be used as a cut-off for determining the level of hearing required to communicate effectively with others." ER275. Some class members can lip-read and communicate verbally, for example, and UPS has hired deaf driver-helpers, who must communicate with the public. The court added that UPS historically communicated with deaf employees without a qualified sign-language interpreter: "It is ironic – and untenable – for UPS to contend that deaf individuals can communicate effectively with their supervisors and receive effective training in writing or using other non-verbal means but that they cannot communicate with members of the general public or emergency response teams using the same methods." ER275-76. As for driving, the court noted that UPS has never "analyzed whether or to what extent hearing is necessary to be a safe driver." ER277. Rather, even though the regulations do not cover the kind of vehicles plaintiffs want to drive (ER300), the company "defers to the DOT regulations" and assumes that persons who pass the test have sufficient hearing to do the job; those who fail do not. ER277. The court found, however, that UPS failed to establish that the plaintiff class cannot drive safely. ER278. Turning to legal issues, the court held that the framework described in Teamsters v. United States, 431 U.S. 324 (1977), applies to this case. Under that framework, plaintiffs initially must prove that an unlawful discriminatory policy exists, not that every class member was a victim of unlawful discrimination. ER285. The court reasoned that, although Teamsters was a Title VII pattern-or-practice case brought by the government, the same framework has been applied to private Title VII class actions and ADA suits brought by government agencies. Moreover, the ADA provides that Title VII's "powers, remedies and procedures" are available to "any person alleging discrimination on the basis of disability," and the rationale for the Teamsters approach, as well as the distinction between individual cases and policy cases, is equally applicable. The court reasoned, "it would defeat the purpose of a pattern-or-practice class action if this Court were to try each class member's claim before determining liability to the class a whole." ER283-85. The court stated that UPS's admission that it does not individually assess the qualifications of driver-applicants who fail the DOT hearing standard, "[s]tanding alone, . . . may be enough for Plaintiffs to meet their burden" because it means that UPS "has a qualification standard that screens out all deaf individuals" and, so, would screen out even those who could perform the essential functions of the job. ER288-89. The court recognized that "UPS would undoubtedly respond that this is because no deaf individual is qualified to drive safely, but this issue is better left to the Court's analysis of UPS's business necessity defense." ER289. In any event, the court found that two applicants screened out by the policy – Elias Habib and Babaranti Oloyede – were sufficiently qualified to proceed to the next step in UPS's driver training program. ER289-90. In the court's view, this evidence, coupled with UPS's undisputed blanket exclusion, "is more than adequate" for a prima facie case under Teamsters." ER290. Turning to business necessity, the court noted that this Court has held that UPS could establish a business necessity defense for this same hearing policy by showing either that substantially all deaf drivers present "‘an unacceptable risk of danger'" or that it is "‘highly impractical more discretely to determine which [deaf] employees present such an unacceptable risk.'" ER292 (quoting Morton v. UPS, 272 F.3d 1249, 1260-63 (9th Cir. 2001)). Applying that standard, the court held that UPS failed to prove either prong of the defense. On the first prong, the court found that UPS did not prove that substantially all drivers who fail the hearing test pose an unacceptable safety risk. ER302. The court noted that crash-risk studies and other similar evidence reach inconsistent results – concluding variously that deaf drivers are safer than, as safe as, and less safe than hearing drivers; the studies also were all methodologically flawed and defined deafness in different ways. ER293-94 (adding that plaintiff's expert's balanced opinion was "far more credible" than UPS's "one-sided analysis"). The court was also unconvinced by Dr. Staplin's testimony that, because a UPS driver's job is visually demanding, devices such as visual cues on the dashboard to signal an approaching emergency vehicle could not compensate for deaf drivers' inability to hear such vehicles. The court noted that Dr. Staplin admitted that he had never worked with, interviewed, or observed a deaf driver, and was aware of no studies that had considered whether deaf drivers could compensate for their hearing loss. ER297-98. The court "agree[d] with UPS that, all other things being equal, a driver with perfect hearing would likely pose less of a safety risk than a driver with impaired hearing. As a result, there are, in theory at least, situations where a hearing driver would avoid an accident while a deaf driver, with all the same training and skills except for hearing, would not." ER298. In the court's view, however, this does not "answer the question of whether UPS's application of the DOT hearing standard to non-DOT- regulated vehicles is consistent with business necessity." Id. For example, while unimpaired drivers testified that they had avoided accidents after hearing a warning sound, UPS did not show that deaf drivers who have compensated for their hearing loss would not also have avoided those accidents. Morever, even if it is true that a hearing driver would pose less risk than a deaf driver with the same characteristics and training, a significant portion of deaf drivers may still drive as safely as or more safely than the typical hearing driver; "hearing alone does not make someone a safe driver." ER298-99 (citing EEOC v. UPS, 149 F. Supp. 2d 1115, 1144- 45 (N.D. Cal. 2000) (rejecting proposition that substantially all monocular drivers are unsafe because "[t]he median monocular driver may pose more risk than the median binocular driver, but both groups have many safe individuals"), rev'd on other grounds, 306 F.3d 794 (9th Cir. 2002)). Finally, the court concluded that, even if UPS showed that deaf package-car drivers would likely be involved in one or more accidents each year, UPS would still be required to – but did not – show that they "pose a greater safety risk than that already accepted by the company." ER299. The court noted that UPS's current drivers are not risk-free. In any given year, approximately one in three package-car drivers is likely to have an accident, and two in a hundred are likely to have a serious accident; UPS typically retrains, rather than terminates, drivers who have repeat accidents. ER299-300. Regarding the second prong of the defense, the court stressed that the question was not whether UPS could predict which deaf drivers will have accidents – it clearly cannot for any drivers – but "whether UPS can determine which deaf drivers are more likely to be safe drivers in the same way [it] evaluates which hearing drivers are more likely to be safe drivers." ER303. According to the court, UPS uses four principal tools in assessing a hearing applicant's driving ability: (1) their driving record as evidenced by a DMV print-out; (2) a road test; (3) an intensive defensive driver-training program comprised of classroom study, in-car training and a probationary period; and (4) annual ride-alongs as well as retraining after certain accidents. ER264- 70. This process is highly individualized. Initially, the court rejected UPS's argument that deaf applicants' DMV records are less reliable than those of hearing applicants because police may decide not to ticket deaf drivers to avoid communication difficulties. The court noted that UPS accepts hearing applicants' DMV records at face value without determining whether any other group such as women or people of color is disproportionately stopped or cited for moving violations. ER304- 05. The court was also unpersuaded that UPS could not properly train deaf applicants. UPS witnesses cited several ways the current program would not accommodate deaf trainees. During in-car training, for example, deaf trainees might be unable to hear and respond to instructions, and trainers could not adequately assess whether trainees were internalizing UPS's techniques without verbal communication. ER306-07. However, the court noted, none of the witnesses had ever evaluated the driving ability of anyone who failed the DOT hearing test, nor had UPS conducted any studies or tests on the feasibility of using other communication forms between trainer and trainee. Id.; ER312-13. The court acknowledged that UPS might have to modify its driver-training program to accommodate deaf applicants; the current "driver drill" would not work for trainees who cannot hear or speak at all. ER309. However, the court noted, some people who fail the hearing test have some degree of hearing and, so, may be able to respond to verbal instructions in emergencies. ER309-10 (adding that training vehicles could perhaps be equipped with auxiliary brakes and mirrors). The experiences of Bates and Valencia also suggest possible accommodations; both were trained as drivers using a combination of verbal instruction, simple sign-language commands, lip-reading and written exchanges. ER307-09. In addition, Daniel Cox testified, based on his experience training deaf drivers, that he could assess whether trainees were learning what he was teaching by having them point to hazards and using an eye-check mirror on the windshield to see where the trainee's eyes were looking and moving. ER309-11. Further, the court suggested, UPS might be able to use computer simulations to evaluate how well trainees had adequately internalized UPS's training techniques. ER310. Finally, the court noted, in assessing safety, UPS could consider factors such as the nature of the hearing loss, rehabilitative or other specialized training to compensate for the impairment, and a sustained safe driving record and/or commercial driving experience. ER312-13 (citing EEOC v. UPS, 149 F. Supp. 2d at 1170, and Morton, 272 F.3d at 1265). In conclusion, the court held, UPS's application of the DOT standard to non-DOT-regulated vehicles is not consistent with business necessity and, so, violates the ADA and California law. ER316-17. The court therefore ordered UPS to cease using the standard to screen out applicants for package-car driving positions. If a deaf applicant meets the other requirements for a driver position, UPS must individually assess that applicant's ability to become a driver and engage in the interactive process to identify specific accommodations that would enable him to obtain driving work in non-DOT-regulated vehicles. Id. The court stressed that UPS need not compromise safety or allow all deaf driver-applicants to become package-car drivers. On the contrary, if, after an individualized assessment and the interactive process, UPS determines that a particular deaf driver cannot do the job safely, he need not be hired as a package-car driver. ER317. Instead, plaintiffs must "be given the same opportunities" that hearing applicants have "to show that they can perform the job of package-car driver safely and effectively." In short, the court concluded, "[d]eaf individuals who meet UPS's threshold requirements cannot be categorically excluded and must instead be permitted to proceed through the company's regular processes for becoming a package-car driver, with reasonable accommodations provided to them as needed. UPS relies on these processes to screen out unsafe hearing drivers, and the Court now requires that deaf drivers be treated no differently." ER317-18. ARGUMENT I. IN AN ADA ACTION A COURT MAY PROPERLY ENJOIN AN EMPLOYER POLICY THAT SCREENS OUT A CLASS OF PERSONS WITH A DISABILITY AND IS NOT JUSTIFIED BY BUSINESS NECESSITY WITHOUT FINDING THAT ALL OF THE AFFECTED CLASS MEMBERS ARE QUALIFIED FOR THE POSITION AT ISSUE. The district court correctly held that plaintiffs may prove that an employer policy which excludes a class of individuals from a job on the basis of disability violates the ADA and may obtain an injunction without showing that each class member is qualified for the job at issue. UPS concedes that it excludes all deaf employees from any driving job, without individually assessing their ability to drive safely, solely because they are deaf. The ADA permits such a blanket exclusion policy only if the employer proves business necessity. Once it rejected UPS's defense, therefore, the court reasonably enjoined the policy. The ADA prohibits employers from "using qualification standards . . . or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities" unless the standard or other criterion, "as used by the [employer], is shown to be job-related for the position in question and is consistent with business necessity." 42 U.S.C. § 12112(b)(6); see also 42 U.S.C. § 12112(b)(3) (prohibiting use of "standards, criteria and methods of administration . . . that have the effect of discrimination on the basis of disability"). The employer bears the burden of proving that a challenged criterion is job-related and consistent with business necessity and that neither the criterion itself nor job performance could be accomplished with a reasonable accommodation. 29 C.F.R. § 1630, App. 1630.15(b) & (c); 42 U.S.C. § 12113(a); Cripe v. City of San Jose, 261 F.3d 877, 890 (9th Cir. 2001) (employer's burden). "The purpose of this provision is to ensure that individuals with disabilities are not excluded from job opportunities unless they are actually unable to do the job." 29 C.F.R. § 1630, App. 1630.10; H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 71 (1990) (same; criterion must "be carefully tailored to measure the person's actual ability to perform [an] essential [job] function"), reprinted at 1990 U.S.C.C.A.N. 303, 353-54 ("House Labor Report"). As the district court recognized, very little caselaw addresses how a violation of § 12112(b)(6) should be proved in the context of a class action such as this one. See, e.g., Morton v. UPS, 272 F.3d 1249 (9th Cir. 2001)(single plaintiff); Cripe, 261 F.3d 877 (six plaintiffs). The terms of the provision plainly focus on the challenged standard or practice, however, and where, as here, disability is not contested, the standard or practice should properly be the focus of a judicial determination of the legality of the employer's action. In light of this focus on the practice, therefore, the district court here correctly observed that class suits under § 12112(b)(6) fit neatly into the bifurcated trial framework described in Teamsters v. United States, 431 U.S. 324. Teamsters holds that, where a plaintiff challenges an alleged discriminatory policy or practice, plaintiff's burden in the liability trial is not to "offer evidence that each person for whom it will ultimately seek relief was a victim" of the policy. Id. at 360; compare id. at 357-39 (rejecting argument that McDonnell Douglas framework, requiring proof for each potential claimant, controlled). Rather, plaintiff must show that the challenged policy or practice exists. Id. At that point, the burden shifts to the defendant to defeat the prima facie showing by demonstrating that the proffered proof is either "inaccurate or insignificant." Id. If defendant fails to rebut the inference arising from the prima facie case, the court "may then conclude that a violation has occurred and determine the appropriate remedy," which may include "an injunctive order against continuation of the discriminatory practice." Id. at 361. Relief for individual victims of the policy may be sought later in "additional proceedings." Id. See also Franks v. Bowman Transp. Co., 424 U.S. 747, 772 (1976) (class action). In this case, plaintiffs contend that UPS's practice of requiring all prospective drivers to pass the DOT hearing test screens out the plaintiff class, all of whom are deaf, because of their disability. Analyzing this claim within the Teamsters framework, it is clear that plaintiffs established a prima facie case of a § 12112(b)(6) violation. UPS conceded both that plaintiffs who fail the DOT hearing test are disabled and that its practice is to bar everyone who fails the test from becoming a driver, regardless of their other qualifications. Thus, consistent with Teamsters, once the district court found that UPS failed to establish a business necessity defense, the court correctly ordered UPS to discontinue using its hearing test as a categorical bar and, instead, to more discretely determine which individual deaf applicants could do the job, with or without reasonable accommodation. ER318. In urging this Court to reverse, UPS makes several arguments related to its theme that plaintiffs were required, but failed, to prove that each class member was qualified to drive package-cars. Significantly, UPS does not dispute that the Teamsters framework applies. Rather, the company argues that plaintiffs never showed that any class members were qualified to drive UPS trucks; absent such proof, the argument goes, the blanket exclusion policy is not unlawful and the injunction cannot stand. These arguments have no merit. First, plaintiffs adequately established a prima facie case under § 12112(b)(6) without consideration of the specific qualifications of any individual class member. See EEOC v. Murray, Inc., 175 F. Supp. 2d 1053, 1060 & n.9 (M.D. Tenn. 2001) (EEOC need not prove "any individual job applicants . . . were qualified individuals with disabilities during the liability phase of the litigation"). As the district court stated, deaf employees are not "categorically" unqualified for all driving positions at UPS by virtue of their inability to meet DOT's hearing standard (ER271). This is not a case where the plaintiffs because of their disability cannot meet some legal requirement for a job, as might be true, for example, if they sought jobs driving DOT-regulated vehicles. Cf. S. Rep. No. 116, 101st Cong., 1st Sess. 27 (1989) ("legislation prohibits use of a blanket rule excluding people with certain disabilities except in the very limited situation where in all cases physical condition by its very nature would prevent the person with a disability from performing the essential [job] functions even with reasonable accommodation") ("Senate Report"). On the contrary, other than the challenged hearing standard, the qualifications for entry into UPS's driver-training program are minimal: a valid driver's license, a "clean" driving record (defined by each district) and adequate seniority. ER263-64, ER260. See Sisson v. Helms, 751 F.2d 991, 992 (9th Cir. 1985) (Rehabilitation Act) (plaintiff is qualified if he meets all but challenged requirement). Since it is undisputed that states routinely license deaf drivers without restriction (ER302) and seniority, if presently lacking, can be earned merely by continuing to work, there is no reason to believe that no members of the plaintiff class can satisfy these requirements; evidence regarding the qualifications of individual class members reasonably could be reserved for relief proceedings. See, e.g., Franks, 424 U.S. at 772 (seniority, vacancy, qualifications shown in relief proceedings); Domingo v. New Eng. Fish Co., 727 F.2d 1429, 1445 (9th Cir. 1984) (interest, minimal qualifications shown in relief proceedings). UPS argues, however, that to make out a prima facie case and obtain injunctive relief, plaintiffs must establish that as a class, they are able to drive safely. See Brief at 45 n.15. The district court correctly rejected this argument. See ER282-83. UPS also contends that the district court erroneously shifted the burden to the company to prove that plaintiffs were not qualified as part of its business necessity defense. Brief at 31-32. Even though it measures non-deaf applicants' safe driving ability based on the minimal requirements noted above, the company suggests that plaintiffs separately must prove safe driving ability. But the district court recognized, instead, that to defend its policy banning all deaf drivers, UPS must prove that none or nearly none of them can drive safely. See ER289. That burden-shifting was not erroneous. It was compelled by both the statute and this Court's decision in Morton, 272 F.3d at 1263. As the district court recognized, if plaintiffs had to carry the burden UPS would have them shoulder as part of their prima facie case, they would in essence have to disprove business necessity and once they did, UPS could not conceivably then make out a business necessity defense. Such a reading of the statute makes no sense. See ER289 (since employer bears burden of showing that all or substantially all class members cannot drive safely, "it would make little sense to require Plaintiffs to prove the opposite as part of their prima facie case"). On the contrary, §§ 12112(b)(6) and 12113(a) clearly contemplate that UPS must make this showing. See, e.g., Cripe, 261 F.3d at 890. UPS's confusion about the parties' respective burdens may stem from its attempt to blend the proof scheme developed in individual ADA cases into the Teamsters framework. See Brief at 21-24 (citing individual cases). Individual ADA cases, like their Title VII counterparts, focus on specific plaintiffs: typically, plaintiffs show that they are disabled, qualified for the job and adversely affected because of the disability. Compare Kennedy v. Applause, 90 F.3d 1477, 1481 (9th Cir. 1996), with McDonnell Douglas v. Green, 411 U.S. 792 (1977) (protected status, qualified, applied and rejected, other applicants sought). In contrast, the initial focus under Teamsters is on the discriminatory policy; while plaintiffs must prove qualifications to obtain individual relief, such evidence largely comes in subsequent proceedings. See Teamsters, 431 U.S. at 360-61. The Supreme Court in Teamsters rejected an argument that the government was required to follow the order and allocation of proof outlined in McDonnell Douglas and, so, prove the qualifications of each claimant in the initial liability trial. The Court explained that the precise pattern of proof in a discrimination case is flexible and depends on the nature of the claim. See 431 U.S. at 357-59. Similarly, here, the district court refused rigidly to follow the pattern of proof in individual ADA cases in this ADA class action, reasoning that "it would defeat the purpose of a pattern-or-practice class action if this Court were to try each class member's claim before determining liability to the class as a whole." ER283-85. This reasoning and result fully accord with Teamsters and, so, should be upheld. In any event, the district court expressly found that two members of the plaintiff class, Elais Habib and Babarant Oloyede, were qualified under UPS's standards to enter the driver-training program. While UPS challenges these findings, they are supported by the record. Regarding Habib, for example, UPS argues that there is no evidence his driving record was satisfactory. However, the record shows that Habib bid on a driving job and filed a grievance when Habib was passed over because he is deaf, and the job was given to a junior employee. The grievance went all the way up to a national panel. Supplemental Excerpts of Record ("SER")213-30. Based on that evidence, the district court reasonably inferred that Habib's driving record met or exceeded UPS's minimum requirements because, otherwise, the grievance would have been summarily denied on that ground. Thus, because the findings are not clearly erroneous, the court's decision and the injunction it issued can be affirmed without resolving this question. Courts have awarded injunctive relief in cases involving only one or a few plaintiffs. See Roe v. Cheyenne Mt. Conf. Resort, 124 F.3d 1221, 1230-31 (10th Cir. 1997) (single plaintiff); Thomas v. Washington County School Bd., 915 F.2d 992, 925-26 (4th Cir. 1990) (single "prospective applicant"); Nanty v. Barrows Co., 660 F.2d 1327, 1333-34 (9th Cir. 1981) (affirming injunctive relief where evidence indicated plaintiff was rejected solely because of race; remanding for determination of whether individual relief was warranted); cf. Criswell v. Western Airlines, 709 F.2d 544, 557-58 (9th Cir. 1983) (nationwide injunction in non-class case under the ADEA), aff'd, 472 U.S. 4400 (1985). II. IN ASSESSING UPS'S BUSINESS NECESSITY DEFENSE, THE DISTRICT COURT CORRECTLY CONSIDERED THE LEVEL OF RISK UPS DEEMS "ACCEPTABLE" FOR ITS NON-DEAF DRIVERS AND DRIVER-APPLICANTS. The district court correctly considered the level of risk that UPS deems acceptable for non-deaf drivers and driver-applicants in assessing whether UPS could prove that its categorical ban on deaf drivers satisfies the business necessity standard. Indeed, this Court has specified that "the level of risk that UPS accepts for drivers generally and for ascertainable subgroups of drivers is pertinent" to the business necessity inquiry. Morton, 272 F.3d at 1263. In light of evidence that UPS routinely hires and employs non-deaf drivers who pose an increased risk of accident, the district court reasonably found that UPS did not establish business necessity for its blanket exclusion of deaf driver-applicants. In Morton v. UPS, 272 F.3d 1249, this Court clarified the ADA's business necessity defense in the context of an individual suit under § 12112(b)(6) brought by a deaf driver-applicant challenging UPS's hearing standard. According to the Court, Congress intended that a blanket exclusion policy like UPS's hearing standard be "carefully tailored to measure the [applicant's] actual ability to perform an essential [job] function." Id. at 1261-62. Thus, to justify its policy, UPS would have to prove either that substantially all deaf applicants screened out by the policy "present an unacceptable risk of danger" or that it is highly impractical more discretely to determine which deaf applicants present such an "unacceptable risk." Id. at 1263. The Court added that, in weighing proof of business necessity, "the level of risk that UPS accepts for drivers generally and for ascertainable subgroups of drivers is pertinent." Id. at 1264. Such evidence serves as a benchmark against which to evaluate whether the risk posed by excluded applicants is, in fact, "unacceptable." Morton, therefore, teaches that an employer like UPS may not raise the bar for persons with a disability, such as deafness, merely because of the disability. See 42 U.S.C. § 12112(a). Here, the district court reasonably found that UPS has done just that. Specifically, there is evidence that UPS employs at least three types of non-deaf drivers who pose a higher than average risk of accident. The district court highlighted one -- drivers who have repeated accidents. By way of illustration, the court noted that one district allows drivers to have three accidents in a nine- month period, and UPS chooses to retrain, rather than terminate, such drivers. ER299-300. "Repeaters" are, however, likelier to have another accident. See, e.g., 70 Fed. Reg. 16888 (April 1, 2005) (DOT has determined, in the context of its vision waiver program, that the "best predictor of future performance by a driver is his/her record of accidents and traffic violations"). Second, UPS allows drivers to have radios and cell phones in their package-cars. However, drivers using such devices may also pose an elevated risk of accident. SER177-78, SER185, SER254. Finally, UPS employs young male drivers. Record evidence indicates that this "identifiable subgroup" is substantially more likely to have accidents than are female drivers and older male drivers (PEx328); yet, there is no evidence that UPS specially screens or trains this high-risk group. The risk it poses is therefore clearly "acceptable" to the company. The district court reasonably found that UPS did not prove that "deaf drivers pose a greater safety risk than that already accepted by the company." ER299. Rather than address this evidence head-on, UPS misconstrues the court's findings as to risk. The company complains that it "simply is not the law under the ADA" that it must hire potentially risky deaf applicants merely because "some degree of risk is inherent" in package-car driving. Brief at 37-38. On the contrary, the court did not ground its findings on the "inherent" riskiness of UPS's business but rather on the evidence of the risk that deaf drivers pose compared to the risk UPS tolerates from its non-deaf workforce. It is "the law under the ADA" that UPS may not categorically exclude deaf applicants if non-deaf UPS drivers pose the same or a greater risk of accident. UPS contends that the district court's approach makes the business necessity defense impossible to prove. Brief at 38. This Court recognized, however, that Congress intended the defense to be "quite stringent." 272 F.3d at 1261-62. Applicants could be excluded only if they failed to meet a standard that was "carefully tailored" to measure their "actual ability" to perform essential job functions. See, e.g., House Labor Report at 71; Senate Report at 37-38 (same); see also 29 C.F.R. § 1630, App. 1630.10 (requiring "fit" between job criterion and applicant's "actual ability to do the job"). This accords with standards under other statutes. See, e.g., Western Airlines v. Criswell, 472 U.S. 400, 423 (1983) (ADEA)(unless nearly everyone over specified age cannot do the job, cut-off must be at the point where it is highly impractical to insure by individual testing that employees will be qualified). Here, UPS's standard measures applicants' "actual ability" to hear, not drive; the company merely assumes the proper fit, having never studied or otherwise attempted to determine whether a less restrictive standard would adequately serve its legitimate needs. See ER277, ER294-95 (even if Dr. Staplin's testimony that package- car driving requires "hearing" were credited, since he admittedly never analyzed the extent to which any particular hearing level is required to ensure public safety, "it is not at all clear that ‘hearing' in this context refers to a level of hearing sufficient to pass the DOT hearing standard"). Nevertheless, UPS argues that it needs a categorical ban because it cannot identify which deaf drivers are safe. Brief at 38-42. As the district court noted, however, the same is true for UPS's hearing drivers. ER303. Indeed, some UPS districts permit non-deaf driver-applicants entering the driver-training program to have two or even three citations on their DMV records in the previous three-year period (ER254), and despite careful training, UPS drivers do have accidents, serious and otherwise, after they are hired. ER299. Since it does not hire or employ only those hearing drivers who are guaranteed to be safe, the company likewise cannot insist on such a guarantee for deaf drivers. 42 U.S.C. § 12112(a); cf. UAW v. Johnson Controls, 499 U.S. 187, 197 (1991) (since fertile men were not barred from jobs posing risk to reproductive health, employer could not bar fertile women from such jobs); McGregor v. AMTRAK, 187 F.3d 1113, 1116 (9th Cir. 1999) (employer could not deny employment opportunities to disabled employees merely because they were not 100% healed).<3> Furthermore, the court rejected UPS's argument that it cannot more discretely sort individual deaf applicants into risk categories, as it does its hearing applicants. Clearly, some drivers – deaf and hearing – are demonstrably unsafe. They get speeding tickets, run red lights, drive drunk, and/or are repeatedly involved in accidents, large or small. If it did so uniformly, UPS would be free to reject such persons because of their behavior, whether or not they are disabled. The court also listed several indicators of safe driving ability: sustained safe driving history, successful commercial driving experience, and previous rehabilitative or specialized driver training. The court further suggested that certain accommodations, such as special mirrors, could be used both to increase driver safety and to facilitate driver training, and that UPS could require reasonable extra and/or specialized training, utilize computerized video driving simulation, and observe whether applicants have adapted to their disability. ER306-13; see also Morton, 272 F.3d at 1265; EEOC v. UPS, 149 F. Supp. 2d at 1170. Finally, the district court stressed that UPS already uses a highly individualized defensive driver-training program both to teach hearing applicant-trainees to become safer drivers and to screen out trainees who do not and cannot learn to apply UPS's safe driving techniques while driving UPS vehicles. Despite UPS's protestations to the contrary, the court was not convinced the company could not use a modified version of this program for its deaf driver-trainees. ER306-13 (adding that Cox trained deaf drivers using variation of same program). Misreading these suggestions, UPS asserts that the court required the company to substitute a "test" made up of the "vaguely sketched-out musings of a judge" for a "test created by DOT to respond to the specific concerns of impaired hearing." Brief at 45-47. Significantly, the test that UPS is using – i.e., the DOT hearing standard – explicitly does not apply to driver-applicants like plaintiffs. Despite UPS's urging, DOT determined that drivers of small trucks and vans like those at issue here did not need to meet the hearing standard since such trucks are more like automobiles than, for example, the big rigs and other large vehicles regulated by DOT. See Morton, 272 F.3d at 1264 (citing 53 Fed. Reg. 18,042 (1988)). In any event, the district court ordered UPS neither to use any "new ‘specially designed'" alternative to the DOT hearing test nor to hire deaf applicants who, despite reasonable training and accommodation, do not and cannot be taught to drive safely. Rather, the court ordered UPS to discontinue using the DOT test as a categorical ban and, instead, to give deaf employees "the same opportunities" hearing applicants receive "to show that they can perform the job of package-car driver safely and effectively." ER317-18. Beyond that, the court simply noted, for UPS's consideration, the factors and suggestions discussed above. UPS states, correctly, that plaintiffs failed to prove a less discriminatory alternative to the DOT hearing test. Brief at 41. Nor, indeed, were they required to do so. The question of whether a less discriminatory alternative exists arises only after an employer proves that its qualification standard is a business necessity. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). The court expressly found that UPS did not carry that burden, and UPS has not shown that the finding is clear error. The question presented in this case is not whether UPS must hire deaf drivers, regardless of their ability to drive safely. Rather, it is whether the company may exclude deaf drivers reflexively, even if they can drive safely, merely because they have failed a hearing test that is, on its face, inapplicable to the jobs these individuals desire. After carefully reviewing the evidence, the district court rejected UPS's argument that it cannot more discretely determine which deaf drivers can drive as safely as the non-deaf drivers the company normally hires. Accordingly, the court ordered the company to give deaf applicants "the same opportunities that a hearing applicant would be given to show that they perform the job of package-car driver safely and effectively." This ruling is fully consistent with both the dictates and the purposes of the ADA. It therefore should be affirmed. CONCLUSION For the foregoing reasons, the decision below should be affirmed and this case should be remanded to the district court for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel __________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 202-663-4721 CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32, I certify that this brief was prepared with Work Perfect, Courier New (monospaced) typeface, 12-point font, and contains 6822 words, from the Statement of Interest through the Conclusion. ____________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I, Barbara L. Sloan, hereby certify that two copies of the attached Brief of the Equal Employment Opportunity Commission As Amicus Curiae were sent this 15th day of April, 2005, by first- class mail, postage prepaid, to: Mark A. Perry Rachel A. Clark GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 Christopher J. Martin Rachel S. Brass GIBSON, DUNN & CRUTCHER LLP 1881 Page Mill Road Palo Alto, CA 94304 Todd M. Schneider W.H. Wilson SCHNEIDER & WALLACE 1700 California Street, Suite 340 San Francisco, CA 94109 Laurence W. Paradis Caroline A. Jacobs DISABILITY RIGHTS ADVOCATES 449 Fifteenth Street, Suite 303 Oakland, CA 94612 Ann Elizabeth Reesman MCGUINESS NORRIS & WILLIAMS LLP 1015 Fifteenth Street, N.W. Washington, DC 20005 One copy was also hand-delivered to: Mark A. Perry Rachel A. Clark GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 _______________________________ Barbara L. Sloan ************************************************************************* <1> This brief uses the term “deaf” to refer to anyone who fails or would fail the DOT hearing test, including individuals with some degree of hearing. <2> Unless otherwise noted, factual statements are drawn from the district court’s decision. <3> In making this argument, UPS repeatedly asserts that plaintiffs’ expert, Dr. Songer, testified that the company could not more discretely identify unsafe deaf drivers. Brief at 34, 35, 39, 46. However, the district judge, who heard and observed Dr. Songer testify, explicitly rejected UPS’s interpretation of his testimony. ER303. Noting that Dr. Songer was addressing distinctions based on hearing, the court understood him to mean that it is impossible to distinguish safe from unsafe deaf drivers based solely on the degree and type of hearing loss, but, as with hearing drivers, other factors may be relevant. Id. Rather than attempt to show clear error, UPS simply ignores this finding.